ADEREMI V LONDON AND SOUTH EASTERN RAILWAY

December 20, 2012

Disability discrimination – normal day to day activities

This decision is likely to be helpful to claimants seeking to show they have a ‘disability’. The appeal tribunal stresses that one should look at what the claimant cannot do, rather that what they can. It also criticises a ‘sliding scale’ approach, which might set the bar for claimants too high, and says the statutory guidance may mislead here. And it reiterates that the effect of an impairment on work activities can very much be relevant.

In Aderemi v London South East Railway the EAT has overturned the decision of the first instance tribunal that Mr Aderemi was not disabled because there was no impact from his impairment on his normal day to day activities. The EAT held that the tribunal was wrong to focus on what the claimant was able to do; its focus should have been on what he could not do. Additionally, the requirement to stand for long periods was capable of being a normal day to day activity on the basis that there are many jobs which require employees to stand at length. The EAT has affirmed that a broad approach to normal day to day activities should be adopted.

The facts are that Mr Aderemi was a station assistant. He suffered a back problem which meant that he could not stand for more than about 25 minutes at any one time during his nine hour shifts. He took time off sick and was eventually dismissed on capability grounds. He brought a disability discrimination claim.

The tribunal accepted that Mr Aderemi had a physical impairment but did not accept that it had a substantial impact on his normal day to day activities. The tribunal focussed on all the things Mr Aderemi was able to do rather than focussing on what his impairment prevented him from doing. The EAT was clear in overturning the decision that the focus must be on what the claimant cannot do as a result of the impairment. If the tribunal focussed on what the claimant could do they would never be able to establish whether there was a substantial impact on normal day to day activities. Their focus was entirely wrong. By looking at what Mr Aderemi could not do it was easy to demonstrate that there was a substantial impact.

The EAT also said that unless the impact was minor or trivial it must be treated as substantial i.e. there is no requirement to show how substantial the impact is as long as it passes the hurdle of not being minor or trivial. If the disadvantage to the claimant is a more than usual disadvantage it must be held to be substantial. The tribunal had failed to carry out a proper assessment.

The broader approach adopted by the EAT produced a significantly different outcome. The case has been remitted to be reheard by a freshly constituted tribunal.

The cases on the meaning of normal day to day activities have produced conflicting results. For further illustration see Chief Constable of Lothian and Borders v Cumming [2010] where it was held that participation in a profession and progression in a chosen career were not normal day to day activities. By contrast, in Paterson v Commissioner of Police of the Metropolis [2007] taking an exam to obtain promotion was held to be a normal day to day activity. In Goodwin v Patent Office [1999], the EAT overturned the decision of a tribunal that held that because a paranoid schizophrenic could perform normal domestic duties and get himself to work there was no impact on his normal day to day activities. The EAT (Mr Justice Morrison presiding) held that the focus must be on the things an applicant cannot do or can only do with difficulty rather than the things a person can do. Mr Goodwin could not interact with his colleagues due to auditory hallucinations. There was therefore an impact. Ahmed v Metroline Travel [2011] held that there was no impact on the normal day to day activities of a bus driver with a soft tissue back injury because while he could perform his job he could go to the gym and play with his children. In the light of Aderemi, Ahmed looks wrong.

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